in a coal mine, along with a companion S., was working in a level from which they were driving an "upset." On the morning of the day of the accident the fireman discovered an outbreak of gas in the "upset," and accordingly placed a board across the entrance, chalking upon it, "No road up here," such a board or fence being the usual mode of warning persons that it was dangerous to enter the place so fenced. Both C. and S. understood what the putting up of the board meant, and that it was dangerous to work in the "upset." C. and S. were working that morning at a different part of the mine. C. required a pick, and knowing that S. had left one in the "upset," went to get it. S., who had been warned by the fireman earlier in the day not to go into the "upset" for the pick, but to get one from another place which he named, called out to C. that he was to go to this other place, but C. did not apparently hear what he said. C. entered the "upset," passing over or under the fence with a naked light in his cap, an explosion took place, and he was killed. Held that as at the time of the accident C. was acting within the sphere of his employment, the accident was one arising out of and in the course of his employment within the meaning of the Workmen's Compensation Act 1906. Conway and Another v. Pumpherston Oil Company, Limited, p. 632. Master and Servant Workmen's Compensation Act 1906, sec. 1 (1)—Accident Arising "Out of and in the Course of the Employment" - Miner Acting Outwith the "Sphere" of Employment. The rules of a pit, worked in terms of the Explosives in Coal Mines Order of 21st February 1910, provided that explosives capable only of being fired by detonators should be used; that the detonators should be securely kept and issued only to shotfirers; and that every charge should be fired by a competent person appointed in writing to perform the duty. On the occasion in question, after the shot-firer had left the pit, a miner who had a detonator in his possession-which, however, he had not received from the shotfirer-started to fire a shot. In the course of the operation an explosion occurred whereby he was killed. Held that the accident did not arise out of and in the course of the deceased's employment within the meaning of the Workmen's Compensation Act 1906. Kerr v. William Baird & Company, Limited, p. 616. Workmen's Compensation Act 1897 (60 and 61 Vict. c. 37), sec. 2, sub-sec. 1Claim Specific Sum. A "claim for compensation" under sec. 2 (1) of the Act need not be a claim for a specific sum. Kilpatrick v. Wemyss Coal Company (1906, 44 S. L. R. 255, 1907 S.C. 320) disapproved. Thompson v. Goold & Company, p. 685. Workmen's Compensation Act 1906 (6 Edw. VII, c. 58), Sched. I, sec. 16Review-Minor Workman-Weekly Earn ings -Probable Earnings in Other Employment. The Workmen's Compensation Act 1906, by Sched. I, sec. 16, provides that in a review of a weekly payment "where the workman was at the date of the accident under twenty-one years of age and the review takes place more than twelve months after the accident, the amount of the weekly payment may be increased to any amount not exceeding fifty per cent. of the weekly sum which the workman would probably have been earning at the date of the review if he had remained uninjured, but not in any case exceeding one pound." Held that the amount of the probable earnings must be estimated by the arbiter in the exercise of his discretion, and need not be restricted to earnings which the workman would have obtained had he continued under the same employer. Vickers, Son, & Maxim v. Evans, p. 697. Master and Servant - Workmen's Compensation Act 1906, sec. 1-“Arising out of and in the Course of the Employment" Seaman Unexplained Drowning. While a ship was in harbour a seaman employed on board left his berth and went on deck during a hot night, saying that he was going up for fresh air. Next day his drowned body was found in the water just underneath a part of the ship's rail where the crew habitually sat. There was no further evidence to explain the drowning. Held (diss. the Lord Chancellor and Lord James of Hereford) that, assuming the death had occurred by accident, there was not evidence to support the inference that the accident arose out of the employment. Marshall v. Owners of s.s. "Wild Rose,” p. 701. Dismissal Fraud upon EmployerCondonation-Employer's Knowledge of Fraud. Persons employed as managers of a large industrial company were dismissed in consequence of two alleged frauds perpetrated by them against the interests of the company. In actions by the managers for damages for wrongous dismissal both the frauds were held proved upon evidence, but the managers averred that one fraud had been condoned by the company. During the period of alleged condonation the company had had suspicions of the fraud but not complete proof, and the managers had absolutely denied any fraud. Held that employers must be fully aware that a servant has by his misconduct forfeited his right to continue in the employment before they can be held to have waived that forfeiture, and accordingly the plea of condonation repelled. Federal Supply and Cold Storage Company of South Africa v. Angehrn and Piel, p. 706. Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), sec. 1-"Accident Arising out of and in the Course of the Employment". Seaman Returning to Ship-Lawful Absence for Pleasure. A seaman was lawfully absent from his ship for the purposes of buying clothing and of recreation. On returning he fell from the ladder on the ship's side and was drowned. Held that the accident arose out of and in the course of the employment, and that the shipowners were liable to pay compensation to his dependant under the Workmen's Compensation Act. Per Lord Chancellor"An accident befalls a man in the course of his employment if it occurs while he is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time to do that thing. Moore v. Manchester Liners, Limited, p. 709. Masterand Servant--Collaborateur-Injury through Negligence of Fellow-ServantCompensation by Employer-Indemnity from Fellow-Servant-Workmen's Compensation Act 1906 (6 Edw. VII, c. 58), sec. 6. A workman was injured while at work owing to the negligence of two fellow-servants. The employers became liable to pay him compensation, and claimed to be indemnified by the fellowservants, as liable to pay damages under "a legal liability in some person other than the employer" to pay damage in respect of the injury. Held that the fellow-servants' negligence constituted legal liability in terms of the Act, and that the doctrine of collaborateur did not affect the liabilities of servants inter se. Wright v. Roxburgh, 1864, 2 Macph. 748, approved. Lees v. Dunkerley Brothers, p. 724. Workmen's Compensation Act 1906 (6 Edw. VII, c, 58), sec. 1- Accident-Diseased State of Workman. A workman suffered from a diseased condition of the arteries, and he died of an apoplectic seizure while engaged at work. There was no evidence to show that the apoplexy resulted from a strain or any other incident of labour. Held that there was no evidence that the death had occurred from accident arising out of the employment (cf. Hughes v. Clover, Clayton, & & Company, 47 S.L.R. 885, [1910] A.C. 242). Barnabas v. Bersham Colliery Company, p. 727. Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), sec. 1 (1)—“ Arising out of and in the Course of the Employment" Workman Leaving Work for Necessary Purpose and Going to Unsuitable Place instead of Place Provided. A workman while on duty attending to boilers at a colliery left his work for a necessary purpose, and instead of going to the nearest w.-c. went into a confined space underneath a table engine, where he accidentally plunged his foot into boiling water in a cistern, which, sunk in the ground underneath the engine, was used to receive the escape hot water from the engine. Held that the accident did not arise out of and in the course of the employment within the meaning of section 1 (1) of the Workmen's Compensation Act 1906. Opinion (per Lord Salvesen) that in any event the workman had been guilty of "serious and wilful misconduct" within the meaning of section 1 (2) (c) of the Workmen's Compensa tion Act 1906. Thomson v. Flemington Coal Company Limited, p. 740. Master and Servant - Workmen's Compensation Act 1906 - Refusal to State a Case-Circumstances in which the Court Refused an Application for an Order to State a Case on the Ground that it Failed to Disclose Facts from which an Accident was Necessarily to be Inferred. Walker v. Murrays, p. 741. Contract-Engagement for a Year with Continuance of Service – Implied Contract-Tacit Relocation. A contract of employment was entered into whereby a company agreed to take over the whole stock-in-trade of a furrier, and to employ him for the period of one year, viz., from 15th March 1909 till 28th February 1910, at a certain salary; while, on the other hand, the furrier agreed to give his whole time to their service for that period, and that he at the end of this engagement would not within three years from the date thereof engage, directly or indirectly, in any similar business to or in competition with that of the company within a certain district. In March 1911 the company, averring that the furrier was carrying on business in breach of the agreement, raised an action of interdict against him. The respondent, while admitting that he was engaged in business contrary to the clause of restriction, maintained that the complainers had broken their contract and that he was no longer bound by it. He averred that negotiations were entered into for a new contract; that pending the adjustment thereof he continued in the service of the complainers upon the conditions of the original agreement; that the contract was one of yearly employment; that the original agreement ended on 28th February 1910; that it was tacitly renewed for another year; that on the faith of the tacit renewal he continued in their service until dismissed on 16th July 1910; and that the contract for the year from 1st March 1910 to 28th February 1911 was thus broken by the complainers. The Court, holding that the respondent's own statement, that pending the adjustment of a new contract he continued in the complainers' service, was inconsistent with the completion of a contract, granted interdict. Observations by the Lord President on tacit relocation and implied contract, and on the cases of Lennox v. Allan & Son, October 26, 1880, 8 R. 38, 18 S.L.R. 13, and Stevenson v. North British Railway Company, July 18, 1905, 7 F. 1106, 42 S. L.R. 768. Stanley Limited v. Hanway, p. 757. Workmen's Compensation Act 1906 (6 Edw. VII, c. 58), sec. 1 (1)—“Arising out of and in the Course of the Employment" -Disobedience to Orders by Using Hoist. A message boy who was employed in delivering fish at a kitchen situated on the third floor of an infirmary was injured while making his way from the ground floor to the third floor by means of a hoist which he had entered and caused to ascend. There was a notice at the side of the hoist to the effect that it was only to be used by servants of the institution, and worked only by those specially authorised by the directors, but it was not proved that the boy had read the notice, or had his attention directed to it, though it was proved that he had been cautioned against using the hoist. Held that the accident did not arise out of and in the course of his employment. M'Daid v. Steel, p. 765. Master and Servant-Workmen's Compensation Act 1906 (6 Edw. VII, c. 58), sec. 1 (1) - Injury by Accident - Pneumonia Caused by Inhalation of Poisonous Gas. A miner employed in a mine in the course of his work fired a shot of gunpowder, and about three minutes after the explosion returned to the working-place when it was still full of smoke. He subsequently died from pneumonia, caused by the inhalation of carbon monoxide gas generated by the explosion. It was found proved that this gas was generated by the combustion of gunpowder in varying proportions depending on the ventilation, that similar blasting operations were of daily occurrence, and that on previous occasions the deceased had suffered from headache and nausea caused by the gas. In a claim at the instance of the deceased's dependants, held that death resulted from an accident within the meaning of the Act. Kelly v. The Auchenlea Coal Company, Limited, p. 768 Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), sec. 1 (1), and First Schedule (16)-Review of Weekly Payment -Onus probandi-Certificate by Medical Referee of Workman's Fitness for Work -Supervening Incapacity. A miner sustained injuries by an accident arising out of and in the course of his employment. On 14th February 1910 the medical referee, to whom the matter of his fitness for employment had been remitted, reported that he was fit for his work. Thereafter his employers made application to have the compensation ended as on 14th February 1910, or some subsequent date, or alternatively diminished. The workman maintained that since the date of the referee's examination he had become, and would be for the future, unfit for his work. The Sheriff found, after proof, that the miner was totally incapacitated, but it was not proved that this condition was due to the effects of the accident, and held that the onus of proving that the supervening incapacity was due to the accident lay upon the miner. Held that the onus was upon the miner. M'Callum v. Quinn, 1909 S.C. 227, 46 S. L. R. 141, distinguished. M'Ghee v. Summerlee Iron Company, Limited, p. 807. Workmen's Compensation Act 1906 (6 Edw. VII, c. 58), sec. 13-- Workman. A blind man was injured while employed in the industrial department of an institute for the blind. This department was supported partly by charitable contributions received by the institute. institute gave the man, in respect of his services, board, lodging, and 5s. a The month, and received on his account charitable and parochial assistance which came to a few pounds less than the amount it expended on him. Held that the man was a workman within the meaning of the Workmen's Compensation Act 1906. MacGillivray v. The Northern Counties Institute for the Blind, p. 811. Master and Servant- Workmen's Compen sation Act 1906, First Schedule, 1 (b). Compensation Amount. In an arbitration under the Workmen's Compensation Act 1906, when the workman was paid partly in money and partly in kind by a charitable society which received parochial and charitable assistance on his account, the arbitrator stated that there was no evidence as to his weekly earnings save the statement by the officials of the institute that the money payments represented twenty per cent. of the man's earnings. The Court remitted to the Sheriff to allow compensation on that basis. MacGillivray v. Northern Counties Institute for the Blind, p. 811. Workmen's Compensation Act 1906 (6 Edw. VII, c. 58), sec. 1 (1)—“Arising out of and in the Course of the Employment" Inference from Proved Facts--Disobedience of Order. T., a miner, whose duty it was to work at a certain place in a mine, was informed by the fireman that he could work at another place called X till ten o'clock that morning, but that he was not to remain there longer, as after that hour blasting operations would commence from the opposite side, from which a new passage was being opened up. T. worked at X till about ten, when he left and went to his regular working-place, about 65 feet distant, where he remained till eleven, when he was left there working by his mate. About 11:45 a shot was fired opposite X. T. was killed by this shot, and his body was found among the debris at X. T. did not require to pass X to get to the pit bottom, and the order to be away from X was in force when the accident occurred. It was not proved what led T. to go to X, but it might have been to fetch a pick which had been left there by his mate. T.'s representatives having claimed compensation, the arbiter assoilzied the defenders, holding that T. had not been injured in the course of his employment. Held that there was evidence on which the arbiter might reasonably find as he did, that the Court therefore could not interfere with his decision, and appeal dismissed. Traynor v. Robert Addie & Sons, p. 820. Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), Sched. I, secs. 15 and 16- Termination of Compensation Remit to Medical Referee - Earning Capacity Proof. The employer of a workman who had lost an eye, and who had been in receipt, first of full, and subsequently of partial compensation, having proposed to terminate the weekly payments, a remit was made to a medical referee under sec. 15 of the First Schedule annexed to the Workmen's Compensation Act 1906. The medical referee having reported that the workman was as fit as any other one-eyed man to resume work underground, his employers lodged a minute craving the Sheriff-Substitute to end the compensation as from the date of the medical referee's report. The workman lodged answers, in which he denied that he had completely recovered, and at the hearing on the minute and answers asked for a proof as to earning capacity. In reply to the Sheriff-Substitute his agent stated that he was not in a position to maintain that the earning capacity of a one-eyed miner was less than that of a two-eyed miner, whereupon the Sheriff-Substitute refused to allow a proof and declared the compensation ended. Held that the claimant was entitled to a proof as to his wage-earning capacity, and appeal sustained. Arnott v. Fife Coal Company, Limited, p. 828. Master and Servant-Workmen's Compensation Act 1906, sec. 1 (1) — “Arising out of" Employment. A carter, employed as a brakesman, had as his duty to walk continuously at the rear of a lorry, ready to apply the brakes when directed to do so by the driver. He got upon the lorry, which he was expressly forbidden to do, and took a seat in front by the driver, with whom he began to talk on matters which had nothing to do with the work on hand. While he was in that position the driver called upon him to put on the brakes. In jumping off the lorry, with the intention of obeying the order, he fell and was injured. Held that the facts justified a finding that the accident did not arise out of his employment in the sense of the Workmen's Compensation Act 1906. Revie v. Cumming, p. 831. Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), Sched. I, sec. 16Review of Weekly Payment-Finding that Workman Fit for Light Work, and that Employers had Offered such Light Work-No Finding as to Wages that could be so Earned - Diminution of Weekly Payment. In an arbitration under the Workmen's Compensation Act 1906, in which the employers craved a review of the weekly payment payable by them to an injured workman, in respect of total incapacity, the arbitrator found in fact (1) that the workman was able for certain specified light work, (2) that the employers had offered him such light work, and (3) that there was no evidence to show how much the workman might earn by such light work. Held that to found an award diminishing the weekly payment, a finding that the workman was able to earn a specific weekly wage at work which he was able to do was not necessary, and that such an award might proceed on (1) the finding as to the workman's capacity, and (2) the offer of light work by the employers. Per Lord Salvesen-"I must not be understood as holding that the diminution of the compensation might not well have proceeded on the first finding alone. The moment it is established as a matter of fact that total incapacity has ceased, and that only partial incapacity is present, the employer has made out a prima facie case for having the award as for total incapacity diminished." Cardiff Corporation v. Hall, [1911] 1 K.B. 1009, and Proctor & Sons v. Robinson, [1911] 1 K.B. 1004, considered. Carlin v. Alexander Stephen & Sons, Limited, p. 862. Master and Servant--Workmen's Compensation Act 1906, sec. 1 (1)—“ Arising out of the Employment" -Taking Shorter Route along Railway Line. A canal overseer in the employment of a railway company, in returning to his office on the canal from a railway station where he had been in the course of his duties, went along the railway line, which was shorter, instead of going by road. While walking along the line he was knocked down by a train and received injuries from which he died. In a claim by his widow and children under the Workmen's Compensation Act 1906, held that though the accident arose in the course of the deceased's employment, it had not arisen out of his employment, and that the employers were not liable. M'Laren and Others v. Caledonian Railway Company, p. 885. Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), sec. 1-"Accident arising out of" the Employment— Workmen Engaged to Take Place of Workmen on Strike -Assault by Workmen on Strike. The employees in a woodyard having gone out on strike, other workmen were brought in to take their places. The strikers made an attack on the works and assaulted and threw stones at the workmen there employed. One of the workmen so injured claimed compensation under the Workmen's Compensation Act 1906. Held that his injury was not injury by accident" within the meaning of section 1 of the Act. Opinions (per Lord Justice-Clerk and Lord Salvesen) that even if the injury were injury "by accident," the "accident" did not arise out of the employment. Opinion contra per Lord Dundas. Nisbet v. Rayne & Burn, 1910, 2 K. B. 689, and Anderson v. Balfour, 1910, 2 I.R. 497, disagreed with. Murray v. Denholm & Company, p. 896. Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), sec. 8 (1) (a) and (f) -Medical Referee--Scope of ReferenceFinality. A certifying surgeon on 25th November 1910 granted a certificate that a miner was suffering from a certain industrial disease to which the Workmen's Compensation Act 1906 applied, and was thereby disabled from earning full wages at the work at which he had been employed, and that the disablement commenced on 6th October 1910. The employers being aggrieved had the matter referred to a medical referee pursuant to section 8 (1) (ƒ) of the Act. The medical referee on 13th December 1910 dismissed the appeal "with this restriction, that [the workman] is now able to resume his ordinary work." The employers paid compensation from 6th October 1910 to 13th December 1910, when the workman returned to work. On 24th January 1911 the workman instituted proceedings for an award of partial compensation, and averred that owing to his not yet having fully recovered his earning capacity he was only able to earn £1 a-week or thereby, and he asked for a proof of that averment. The Sheriff-Substitute acting as arbitrator found in law that the medical referee's decision, including the restriction above quoted, was final, and barred the workman from insisting on payment beyond 13th December 1910, and dismissed the petition. Held that the restriction was outside the function of the medical referee and must be regarded as pro non scripto, and that the arbitrator was wrong in dismissing the application. Garrett v. Waddell & Son, p. 937. Master and Servant-Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), sec. 8 (1) (f)-Medical Referee-Scope of Reference-Contradictory Decision. A certifying surgeon granted a certificate that a miner was suffering from a certain industrial disease to which the Workmen's Compensation Act 1906 applied, and was thereby disabled from earning full wages at the work at which he had been em ployed. The The employers being aggrieved had the matter referred to a medical referee pursuant to section 8 (1) (f) of the Act. He issued a decision or deliverance whereby, subject to a note appended, he dismissed the appeal. The note was contradictory of the deliverance. The Court, holding that the Sheriff as arbitrator should have refused to accept the deliverance, remitted the cause to him to remit of new to the medical referee to complete the reference by answering categorically whether the workman was suffering from an industrial disease, and whether he was thereby disabled from earning full wages. Winters v. Robert Addie & Sons Collieries, Limited, p. 940. Workmen's Compensation Act 1906 (6 Edw. VII, c. 58), sec. 1-“ Arising out of and in the Course of the Employment" The Evidence Seaman Unexplained Drowning-Inference of Fact by Arbiter. A ship's officer was on duty upon deck on a ship at sea on a fine calm day. He disappeared. Earlier upon the same day he had complained of being sick and giddy. There was no further evidence to explain the disappearance. County Court Judge held that his death had occurred by accident arising out of and in the course of the employment. Held that the facts warranted the conclusion of the County Court Judge. Marshall v. Owners of s.s." Wild Rose" [1910] A. C. 486, 48 S. L. R. 701, distinguished. Owners of the Ship "Swansea Vale" v. Rice, p. 1095. See Sheriff-Ship. Measure of Damages. See Contract. Medical Referee. See Justiciary Cases Master and Servant. Medium filum. See Property. Mines and Minerals. See Railway. Mortis causa Deed. See Succession. Navigation of Non-tidal River. See River. Negligence. See Reparation. Oath de Calumnia. See Process. Offer and Acceptance. See Contract. Parent and Child-Husband and WifeAbduction of Child by Mother-Petition by Father to Recover Custody. A wife raised against her husband an action of separation and aliment on the grounds of his alleged cruelty and habitual drunkenness. The defender was assoilzied. Thereafter the husband presented a petition to the Court, in which he averred that his wife had left the house where she had been living, leaving no address, and had taken away with her the only child of the marriage, a girl two years old, and that she was taking (or had already taken) the child out of Scotland. He craved the Court to grant warrant to messengers. at-arms to take the child into their cus tody and deliver her to him, and to interdict the wife from removing the child from Scotland. The Court refused to grant the warrant to messengers-atarms to take the child from the custody of the mother, but granted interdict against the mother removing the child from Scotland. Robertson, Petitioner, p. 994. Parole Evidence. See Proof. Patent-Sale of Patent Article-Conditions Imposed by Owner of Patent - Validity of Conditions against Purchaser Purchaser's Knowledge at Time of Sale. The owner of a patent may validly impose conditions upon full ownership and use of the patented article. Those conditions will bind the purchaser of such an article if he is made aware of them at the time when the article is sold to him. National Phonograph Company of Australia v. Menck, p. 733. Validity-Specification-Insufficient Description-Ambiguity. A patent was obtained for "improvements in centrifugal machines." It dealt with a means of supporting while preventing the oscillation of the spindle to which the basket rotated is attached, and the means employed was in typical form, a hollow indiarubber cone suitably supported, into which fitted a counterpart cone formed upon the spindle. The angle of the cone was not stated, but after a narrative of what had been achieved by previous invention, the specification affirmed "the present invention consists in the employment of a cone approaching |